Trump’s legal team is holding firm in their assertion that he has not actually done anything wrong, and that moving forward with the charges against him goes against established constitutional jurisprudence.  

In a lengthy brief filed by Trump’s lawyers, they assert that no criminal activity can be established through the evidence presented during the impeachment process thus far. However, critics say the only guidance on this issue is the phrase regarding high crimes and misdemeanors in the Constitution, which may not require an act that is listed in the criminal statutes of the United States. Trump’s lawyers are concerned that if the standard for impeachment is lowered, it could set a precedent that makes it easier to attempt to remove presidents in the future.  

The debate over what is impeachable behavior 

It seems that the main point of contention may come down to exactly what kind of behavior should be considered an impeachable act. The two specific accusations listed in the articles delivered by the House of Representatives deal with abuse of power and obstruction of Congress. While these may not be considered crimes in the traditional sense, House Democrats and many of the president’s critics believe these actions are enough for impeachment to proceed. Trump’s legal team countered by saying that those in favor of impeachment had already made up their minds beforehand, and are trying to justify this disciplinary action after the fact as a political tool. Some House Democrats will have an opportunity as the prosecutorial team of managers to prove their case in the Senate. On the other side, Alan Dershowitz has repeatedly argued in Trump’s defense that something criminal or very similar to a crime is what was intended in the language of the constitution. 

The first step of the trial will be for the Senate to adopt procedural rules and attempt to come to a consensus regarding criminal behavior and sufficient grounds for impeachable behavior.       

How are crimes proven in a court of law? 

Despite all of the sensationalism surrounding the impeachment hearing, it is important to understand how convictions are obtained in the American legal system.  

The argument being made by Trump’s legal team is one that is reminiscent of a situation that criminal defense lawyers find themselves in at certain times. Prosecutors need to prove that all elements of a crime were actually committed to get a conviction, and the defendant’s actions need to amount to a crime written into the laws of the jurisdiction. If even one element of a crime is missing from the evidence presented, a jury is instructed to find the defendant not guilty.  

Occasionally, police will make an arrest for behavior that is not actually a crime, or a case will be dismissed by a judge because the evidence presented does not show any criminal act. The case does not proceed in these situations because there is no way a reasonable jury could find a person guilty based on the instructions given at the end of the trial. 

Impeachment is more complex because there is little precedent to show exactly what actions can become grounds for a sitting president to be disciplined or removed from office. However, many of the general legal principles remain the same.

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